Ob’ekt prava, Entsiklopediia gosudarstva i prava (1925-1927), Moscow, vol.3, pp.102-103.
From Evgeny Pashukanis, Selected Writings on Marxism and Law (eds. P. Beirne & R. Sharlet), London & New York 1980, pp.183-4.
Translated by Peter B. Maggs.
Copyright © Peter B. Maggs. Published here by kind permission of the translator.
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The Object of Law is one of the basic systematic concepts of jurisprudence, and is closely linked with the concept of a legal relationship and a legal subject. “Every real law is a law of some thing.” (Korkunov) The object of law, as an abstract and general concept, is not related to any one branch of law. Nevertheless, and in a similar way to the majority of juridic categories, it has the clearest and most specific meaning in civil law and, particularly, in property relationships. It is relatively easy to see what the object of law is in property or the law of mortgage, or inheritance law. But jurists have had great debates concerning the nature of this concept in franchise qualifications, for example, or in citizenship. These difficulties have convinced some of the existence of non-objective law (Becker).
The abstract notion of the object of law was virtually absent for Roman jurists – with their pragmatic and non-philosophical minds. It was replaced by the more concrete category of the “thing” (res), and even human slaves were regarded as this. The power of the head of household over his wife and children (patria potestas) was closely linked to the law of things according to their formal juridic basis. For a concrete understanding of the object of law, the absence of an abstract notion of subjective law among the Romans fully corresponds with the precise form of action – actio. Hence, Roman authors established systematic subunits of persons (personae), things (res) and actions (actiones).
Roman jurists displayed some talent for generalization by subdividing things, as objects of law, into the corporeal (corporalia) and the non-corporeal (incorporalia). This distinction applied, for example, to the rights of inheritance and the exercise of the right to agricultural produce.
The development of exchange relationships advanced the actions of the responsible person as a special legal concept. The law of things and the law of obligation were combined into the general notion of property.
The doctrine of the object of law assumed an abstract character with the development of the abstract doctrine of subjective law-representing the universal capacities of the persona-in the bourgeois jurisprudence of the eighteenth and nineteenth centuries. At this stage in the development of juridic thought, a whole series of problems arose that were difficult to resolve. First, attempts were made to depict objects as so-called public subjective rights; and second, there was a desire to construct a legal system based on the idea of norms (understood as imperatives). But if the basis of law is an imperative and the obligation which arises from that imperative, then, for example, the object of the right of property does not logically represent the thing itself with its specific use and exchange-value, but something negative: the restraining actions of all other people which hinder the owner in the possession, use and disposal of his property.
Such dogmatic formal constructions-juridic categories – devoid of economic meaning – are typical of the present time when the dominant role in bourgeois jurisprudence, particularly, in the elaboration of general questions, has. passed from the civilists to the publicists.
Last updated on 13.5.2004